Will HMO reform be good for consumers or lawyers?

Susan Pisano and Ron Pollack

The patients' bill of rights is the issue of the moment in Washington where the Senate is debating its size, scope and shape. CNN's Jeanne Meserve spoke about the issue with Ron Pollack, executive director of Families USA, and Susan Pisano, vice president of communications for the American Association of Health Care Plans. This is an edited transcript.

MESERVE: Susan, we've all heard the horror stories about people dealing with their HMOs, and people who are proponents of this legislation say all this does is give patients a little bit more power to deal with those big health maintenance organizations. What's wrong with that?

PISANO: Well, I wouldn't agree with that characterization. What I would say is that we are for patient protection. We just don't think that the Kennedy-McCain bill is patient protection.

MESERVE: What do you think it is?

PISANO: Trial lawyer protection. What we're talking about is an unprecedented expansion of lawsuits. What we think is we need to focus in on what's going to help patients, a) have confidence in the decisions that are made, and b) get the care they need.

MESERVE: Well, Ron, are lawyers the big beneficiaries here?

POLLACK: No, we are, the consumers. And the reason for that is when [a] health plan knows that for the first time they're going to be truly held accountable, and in fact, there might be a potential significant liability for their improper denials and delays of care, then they're going to get it right in the first place.

Right now, you can cavalierly deny care, and you know that the only thing that's going to happen to you is you get a slap on the wrist. Now, there would be real accountability, and so I think the health plans are going to do a much better job in the first place.

MESERVE: But opponents of this legislation say what could happen is that the price of insurance will go up and many more Americans will ultimately find themselves uninsured. What's your response to that?

POLLACK: Two responses: First, the Congressional Budget Office, which is not a proponent or opponent of the legislation, they say that the liability provisions will cost 0.8 percent of premiums. That's a tiny amount of money. So, first, objectively, this is not expensive.

Secondly, it's very interesting to hear the health plans talk about covering the uninsured. We've had lots of efforts to expand coverage for the uninsured. We've been involved in many of those. They've been deathly silent each and every time, and now they've found the uninsured, but instead of helping the uninsured, they're using them as a shield to protect -- to stop something that would protect all of us. I think that's very unfortunate.

MESERVE: Susan, I have to imagine you have a response.

PISANO: A couple of things. First of all, we have appreciated the work that Ron has done in the area of the uninsured. We've also been working in that area. Our proposal actually hasn't got as much press attention, and we're a little jealous of that.

But with respect to the uninsured, the existence of managed care has also helped to keep the number of uninsured down, and we have to be very careful what we don't do is inadvertently do something that does just the opposite.

I'd also like to make one other point. This question about whether or not the threat of more lawsuits is a deterrent doesn't seem to play out with respect to doctors. What we know is that for the few doctors who are bad practitioners, the threat of liability isn't doing anything, and it's making everybody else practice medicine in a way that's not in the best interest of patients.

MESERVE: The current debate in the Senate centers in part on the issue of employer liability. Quickly, Ron, can you explain what that is and your perspective on that.

POLLACK: Yes, this is a canard. The opponents are saying that employers can be held liable. The McCain bill says absolutely as clear as you can make it that only if an employer is involved in the decision that denies or delays care would an employer be held liable. In all other instances, they would be protected against liability.

And you're going to see on the floor tomorrow an amendment offered that is going to get both sides to fully to understand this, so this argument is going to be moot.

MESERVE: A canard or not?

PISANO: Well, I think that there's real worry about expansion of liability for employers, doctors, hospitals and health plans, and the employer community is very worried.

MESERVE: State court, federal court. Another one of the debates we're hearing about. Now, I understand that the Democratic version, the Kennedy-McCain bill, would allow suits to go forward in state and federal court, whereas the Frist-Breaux bill says no, only in federal court. What does it matter?

POLLACK: Well, it matters in a couple of respects. The federal courts, as you know, are terribly cluttered. There are huge delays. And so Chief Justice [William] Rehnquist wrote to Trent Lott and said, "Don't bring this into federal court because we've got too much of a backlog there." And in addition to that, the state courts are the places where issues about what's appropriate medical care are typically decided.

So, it's going to be much better for everybody, and it will be much more timely to do it in the state court system.

MESERVE: Susan, quick response to that.

PISANO: Well, we just think the issue of liability is the wrong focus here in total. We think the focus ought to be how do you get patients the care they need when they need it. We think independent review does that.

MESERVE: The president has threatened to veto and there is strong disagreement in the Congress on this issue; are we going to see compromise?

POLLACK: The bill is coming. We're going to see this bill, it's going to pass, and the president is going like it. There will have to be some accommodation, but it's going to pass.

MESERVE: Susan, do you agree?

PISANO: I think Kennedy-McCain is being exposed for what it is, which is a lawyer protection bill, and it's got a lot of people worried.

MESERVE: Susan Pisano and Ron Pollack, thank you both ...

POLLACK: Thank you, Jeanne.

MESERVE: ... for joining us here, and I should mention that in one recent poll 85 percent of the respondents said they wanted to see some type of patients' bill of rights.